Text for Discussion: Annotation - Needle Exchange Programs and the Law - Time
for a Change

(1) In his social history of venereal disease, No Magic Bullet, Allan M. Brandt
describes the controversy in the US military about preventing venereal disease
among soldiers during World War I. Should there be a disease prevention effort
that recognized that many young American men would succumb to the charms of
French prostitutes, or should there be a more punitive approach to discourage
sexual contact? Unlike the New Zealand Expeditionary forces, which gave
condoms to their soldiers, the United States decided to give American soldiers
after-the-fact, and largely ineffective, chemical prophylaxis. American
soldiers also were subject to court martial if they contracted a venereal
disease. These measures failed. More than 383,000 soldiers were diagnosed
with venereal diseases between April 1917 and December 1919 and lost seven
million days of active duty. Only influenza, which struck in an epidemic, was
a more common illness among servicemen.

(2) This grim lesson was lost on Americans back home. Campaigns against
syphilis continued to emphasize abstinence. By the 1930s, almost one in ten
Americans was infected with syphilis.

(3) During World War II, however, the American armed forces took a more
realistic approach and distributed 50 million condoms each month during the
war. The military's new motto—”If you can't say no, take a pro”—recognized
that abstinence is the best way to prevent venereal disease, but for those who
don't say no, the best option is to use a condom.

(4) America's experience with providing condoms to prevent venereal disease
parallels American attitudes toward providing clean needles to intravenous drug
users. Early in this century, increasing numbers of individuals began using
the more potent and easily transportable, injectable opiates instead of smoking
opium. It was believed, not unreasonably, that the use of these drugs could be
curtailed by limiting access to the tools necessary to inject them; therefore,
many states outlawed the sale and distribution off hypodermic syringes.

(5) The acquired immunodeficiency syndrome (AIDS) epidemic presented a new
public health challenge. As growing numbers of people contracted human
immunodeficiency virus (HIV) by sharing contaminated syringes, many in the
public health community advocated distributing clean needles to intravenous
drug users to prevent this method of HIV transmission. In the “just say no”
era of drug use prevention, however, opponents feared that providing clean
needles to intravenous drug users would send the “wrong message.” The correct
message was that drug use was unacceptable and that users should receive
treatment. In effect, those who oppose clean needle distribution, like their
predecessors who opposed condom distribution, argued that the only acceptable
way to prevent infection was abstinence. They also argued that making clean
needles available might encourage current nonusers to become intravenous drug
users.

(6) Proponents of clean needle distribution never argued against either
abstinence or treatment. Rather, they argued that those who would not abstain
or be successfully treated (or even gain entry to the overburdened treatment
programs) should not be required to put their lives at risk to continue their
undesirable addiction. Clean needles could prevent HIV infection in
intravenous drug users and their sex partners and offspring. The idea that
some people would become intravenous drug users just because clean needles were
available was seen as ridiculous. If people rationally weighed the risks and
benefits of drug use no one would choose to become a drug addict.

(7) All the research to date demonstrates that the proponent of clean needle
distribution were right. Clean needle availability has reduced HIV infection
among intravenous drug users, many of whom want clean needles; and there is no
evidence of increased drug use as a result. Yet, as Burris and colleagues note
in this issue of the Journal, all but four states have criminal laws
prohibiting the possession or distribution of drug paraphernalia, including
syringes. Although these laws were originally designed to help solve one public
health problem, they have blocked effective solution to a different public
health problem.

(8) Another parallel can be drawn from our experience with condoms. In 1977,
the US Supreme Court struck down a New York law that prohibited the sale and
distribution of condoms to people under 16 years of age. The state argued that
even if the law did not stop sexual activity among minors, it had the symbolic
value of communicating society's disapproval. In his concurring opinion,
Justice Stevens wrote, “The Statute is defended as a form of propaganda, rather
than a regulation of behavior....[I]t seems to me that an attempt to persuade
by inflicting harm on the listener is an unacceptable means of conveying a
message that is otherwise legitimate. The propaganda technique used in this
case significantly increases the risk of unwanted pregnancy and venereal
disease. It is as though a State decided to dramatize its disapproval of
motorcycles by forbidding the use of safety helmets. One need not posit a
constitutional right to ride a motorcycle to characterize such a restriction as
irrational and perverse.”

(9) Similarly, laws that currently restrict access to clean needles are
irrational and perverse. Inflicting harm on intravenous drug users is not a
legitimate way to express our disapproval of their behavior. These laws do not
prevent intravenous drug users from injecting drugs; they only prevent them
from lawfully using clean needles. While law often is an effective tool of
public health policy, these laws are a threat to disease prevention. Laws
prohibiting access to clean needles are largely symbolic, but symbolism does
not prevent disease. And moralism is not morality. There is nothing moral
about requiring people to become criminals in order to prevent disease.

(10) Although Burris et al. Report that some needle exchange programs have
been authorized under disease prevention laws, opponents continue to block them
elsewhere. In April 1996, the governor of New Jersey, the state with the
highest rate of injection drug-related AIDS cases, rejected the recommendation
of her Advisory Council on AIDS to distribute clean needles to intravenous drug
users. Many needle exchange programs in this country operate in a gray area of
the law. The public health workers who take the legal risk to provide clean
needles to intravenous drug users should be commended, along with the
government authorities who choose to look the other way. But the law should
not require public health workers to become conscientious objectors to
undertake actions that clearly further the public's health, or to rely on the
kindness of the law enforcement community. It is time to change all laws that
restrict access to clean needles so that we can make this important preventive
measure available to all who need and want it.